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This piece is a joint effort from Kelly Jensen, Senior Editor at Book Riot, and Sarah Lamdan, Executive Director at the American Library Association’s Office for Intellectual Freedom.
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In 2026, some of the biggest trends in state-level legislation targeting books and libraries misuse two legal concepts to make it easier to ban books in public schools and public libraries. The first is the Miller Test. The second, the “government speech” doctrine.
The types of speech that the First Amendment doesn’t protect are few and far between – a basic benchmark of democracies is that they don’t do censorship. Obscenity is one of a few unprotected categories of speech, and it is defined very narrowly in order to make sure that it is not overly restrictive. That’s where the Miller Test comes in, as it’s used to define obscenity. It was developed by the Supreme Court in 1973, refined from previous attempts to create a clear-cut definition of what does–or does not–make materials “obscene.” The Miller Test is as follows:
1. Would the average person, applying contemporary adult community standards, find that the matter, taken as a whole, appeal to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
2. Would the average person, applying contemporary adult community standards, find that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
3. Would a reasonable person find that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In order for something to be obscene, the answer to all three of these questions must be, unequivocally, “yes.” In 100 or so words, the test uses the phrase “as a whole” two times. It also notes that materials are deemed obscene by an average, reasonable person applying community standards and that materials must lack in literary, artistic, political or scientific value.
Another test, the Ginsberg test, asks the same questions, but applicable to people under the age of 17, to determine whether materials would be considered obscene specifically to minors. This principle is limited. The government can’t ban minors’ exposure to a full category of speech (nudity, for instance) when only a subset of that category could plausibly be deemed obscene. Something is only “harmful to minors” if the entire population of minors, including the oldest ones, would be harmed. (Additionally, the Supreme Court has held that school boards cannot remove books from libraries with the intent to deny access to certain ideas.)
When courts apply the Miller test, they do so with the goal of protecting people’s First Amendment rights. Judges apply a “strict scrutiny” standard, only allowing the government to restrict information for compelling government interests, and they ensure that, when there is a compelling government interest to restrict speech, the government does so narrowly. Judges know that censorship is a slippery slope. If you lose sight of the particular definition of obscenity described in the Miller test, you risk sweeping, overbroad prohibitions on constitutionally protected speech.
One of the reasons so many books have been banned from public institutions since 2021 is that the Miller Test is being undermined by partisan interests. Numerous bans have included materials deemed “inappropriate,” “pornographic,” “sexually explicit,” or simply “sensitive.” Using these unclear, undefined terms is a clever way to work around the definition of obscenity and to ignore the fact that materials, and the right to read them, are protected by the First Amendment.
Besides the concerted effort to undermine the Miller Test with language that has no cognizable definition, there’s also a push to pass legislation that dismantles key pieces of the Miller Test itself. This legislation targets a few components of the Test, including revoking local control (the “community” piece of the Test), and by trying to legalize censorship on the grounds that books in public schools and public libraries are government speech (the “government speech” doctrine).
Florida tried to bypass the Miller Test last year with House Bill 1539. This bill attempted to carve out an exception to the test’s three prongs. HB 1539 would have demolished the third pillar of the test by allowing books to be removed regardless of their literary merit. Lawmakers claimed that Ginsberg allowed schools to remove books regardless of their literary, social, or scientific value, a claim that is not true.
While that bill failed to progress, the 2026 legislative session resurrected this attempt to redefine a First Amendment standard with Senate Bill 1692/House Bill 1119. Literary, artistic, scientific, and political merit would be off the table with these bills–those crucial pieces of the Miller and Ginsberg Tests would have no bearing on whether or not materials could be removed in Florida public schools. Florida already leads the nation in book bans, and this legislation would have been a blank check for the country’s leading book banners to not only continue, but to expand their influence over what students statewide could access.
The bill did not progress this legislative season, and for that, we celebrate the hard work of those on the ground protecting the freedom to read.
It is clear that, despite repeated failures, Florida book banners are desperately trying to dismantle and bypass Miller. In 2021, a Moms for Liberty school board member in Flagler County filed a complaint with the Sheriff, alleging that it was a crime to have the book All Boys Aren’t Blue in the library because it’s “harmful to minors.” When the Sheriff dismissed the claim, he noted that while a portion of the book may offend some, the award-winning and widely recognized book fails the third prong of the legal test.
Similar claims about books like The Kite Runner and The Bluest Eye have also failed in Michigan Courts. When Rockford Public Schools administrators were threatened with prosecution for making books available to students, the judge found the same as the Florida judge: books are not harmful to minors because they have literary value.
Despite these resounding defeats, Florida’s attempts to rewrite the Miller Test for the state in the last two legislative sessions have become roadmaps for other states to build their own corrosive bills. Florida, which continues to be the blueprint for book censorship in the US, helped Idaho and Iowa develop their own bills that revoke local control from public institutions, rewrite the Miller Test, and steal away the rights from its citizens. These bills, whether or not they become law, are only the start of what we’ll continue to see happen across the country. (In Iowa, at least as of this week, legislators failed to see their slate of horrific bills move forward.) When the Trump-Vance regime says that certain issues are state rights issues, it gives some state lawmakers the permission slip that they have been looking for so that they can create their own laws that ignore those already existing on the federal level.
Some states aren’t interested in merely re-writing Miller; they want to completely obliterate it. Idaho’s House Bill 819 would override the Miller Test as the standard for what kinds of materials are allowed and for defining “obscenity,” period. The bill would make it a crime for public schools and libraries to have “sexually explicit content.” The definition offered by the bill lacks the mandatory Miller test and replaces it with a list of terms described vaguely as a “quality of material,” making an exemption for religious books or “classical works of art.” It is unclear who gets to decide which works of art would make the cut, and it is assumed that any and all LGBTQ+ books, books about puberty, sexuality, and anything else that partisan politicians want removed would be prohibited under this law.
Idaho’s HB 819 creates two different levels of access across the state, purposefully and strategically disenfranchising people who use public services and privileging those who use private services. For private schools and private libraries, the Miller Test’s third prong would still be considered, requiring that any works facing removal would be considered as a whole. On the other hand, materials in public schools and libraries would not be considered as a whole. The lawmakers claim that this distinction is appropriate because public schools and libraries are government entities, so anything within them is “government speech.” Recall that in Idaho, there’s not only a draconian law, HB 710, which requires book banning in both private and public schools and libraries. There have also been two lawsuits filed against the state for this law, one coming at the bill from the public institution side and one coming at the bill from the private institution side. Legislators recognized that applying a law to both private and public institutions wasn’t as easy as they thought–so they elected to develop a bill like this to better protect private interests not only at the expense of public institutions but in the interest of giving themselves more power, too.
Again: materials that would be banned from public institutions would be fine in private institutions, and that’s for two reasons. The first is that the right sees this as an opportunity to continue defunding public institutions and implementing voucher schemes that steal tax revenue from public goods and redistributes it to wealthy families who already have the means to attend or use private services (one of the big topics in this year’s Idaho congress has been how much money to cut from public school budgets across the state–and the Heritage Foundation, architects of Project 2025, rank Idaho among the best for “educational choice,” that is, active harm to public education).
The government speech doctrine is a half-baked legal theory that is not from the Constitution, but rather a concept made up in a 1990’s-era Supreme Court opinion where the Court decided that some types of government activities are not required to be viewpoint neutral in accordance with the First Amendment. The idea is that, when the government speaks for itself, it can promote certain messages without providing equal time to opposing views. For instance, a local government can display a permanent statue of the Ten Commandments in a city park without having to allow other permanent monuments that reflect other religious viewpoints, and a state government can decline to make special license plates with particular messaging that it does not endorse, such as the Confederate battle flag.
This relatively newfangled legal concept has caused confusion and concern among judges, lawyers, and the public. Since its inception, people have worried about its potential to erode First Amendment rights. The Supreme Court has always protected speech, including speech that the government doesn’t like, from flag-burning to protesting. Supreme Court Justice Samuel Alito warned that the government speech doctrine could be used to stifle free speech, writing that “If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” Similarly, Justice John Paul Stevens was quick to disparage the “recently minted” doctrine, saying that the few decisions embracing it were “of doubtful merit.”
Because book banners know that what they are doing violates people’s rights, they are trying to bypass those rights by claiming that, when people use libraries, those rights don’t exist. But they are wrong. The Supreme Court has made clear that only actions meant to convey and having the effect of conveying a government message fall under the limited exception to people’s First Amendment protections. Activities that the government does to support people’s speech, such as granting trademarks and allowing people to fly flags on government property, are not government speech. Courts look at three factors to evaluate what is, and what isn’t, government speech:
1. Public’s perception of the speech: Would a reasonable observer think the speech was coming from the government or from a private speaker?
2. History of the expression: Has the government traditionally used this activity as a means of expression?
3. Who controls the speech: Does the government exercise final approval authority and maintain “effective control” over the message?
Applying these factors make it obvious that libraries are not government speech. Reasonable people do not think that the messages in library books come from the government. Courts across the country have declared that libraries are centers of knowledge and places to learn, not places to receive messages formulated by the government. Libraries do not direct people toward any particular viewpoint; instead they offer thousands, and in many cases millions, of viewpoints. The government does not, and should not, control the messages that people can access in libraries. That kind of indoctrination is precisely the thing that libraries seek to prevent by providing an array of ideas and concepts.
It’s not surprising that judges have agreed that it does not make sense to call library materials government speech. Federal courts have declared that libraries in Arkansas, Florida, and Iowa (in an Eighth Circuit opinion) are not government speech. The Eighth Circuit opinion points out that a school library includes Plato’s The Republic, Machiavelli’s The Prince, Thomas Hobbes’ Leviathan, Karl Marx and Freidrich Engels’ Das Kapital, Adolph Hitler’s Mein Kampf, and Alexis de Tocqueville’s Democracy in America and concluding that if public school libraries are government speech, then the government is “babbling prodigiously and incoherently.” Even the Fifth Circuit’s judges, considered by many to be the most willing to embrace extreme decisions, declined to call a public library in Llano County, Texas government speech. This theory is too far out, even for them.
So what can we do knowing how these legal ideas are being twisted to do censorship?
Use this information as you track state and federal legislation so you don’t lose sight of what the law actually is and what your rights actually are. This is exploitation on a legislative level, and it’s intended to keep you feeling confused, lost, and powerless.
This is your opportunity to turn the tables and feel empowered to ask questions and demand proof of what’s being claimed. Why are there so many bills attempting to redefine the Miller Test and/or attempting to invoke the government speech doctrine? It’s crucial now, as it has been forever, to not take what you’re being told by politicians at face value. This era of rampant censorship is based on lies and mistruths, much like this era of authoritarianship more broadly. It is our responsibility as citizens and as people who are granted rights and responsibilities in a representative democracy to push back and point out this manipulation.
As Leila Green Little–lead plaintiff in the Little v. Llano County case–says, speaking out is more important than ever:
In our case’s en banc opinion, the majority concurred that recourse for disagreement with local censorship is the ability for the public to shape local policies at the ballot box. The Court wrote, “They [people] can speak out against (and vote against) policies and officials they disagree with.” This is more true now than ever, and it now remains one of our only real powers for recourse. Support of intellectual freedom and rejection of censorship should become “kitchen table issues” and decisions that guide voting choices as much as reproductive health and immigration. Citizens ultimately do have all the power here. We just have to wield it and determine what our public libraries will become. We have seen recent victories in elections, with citizens wising up to politicians who use fear of books to win votes and choosing an alternative candidate. We need more of this.
Our rights are more fragile than they have ever been. The way we solidify them is by standing up for them. That power belongs to us and us alone.